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Changes to NB Rules of Court Effective October 1, 2014 Benefit Successful Party

Effective October 1, 2014, the New Brunswick Rules of Court will change – some Rules for the first time since they came into effect in 1982. All litigants will experience increased out-of-pocket disbursements during trial preparation, and the discretion given to the assessing officer to increase some amounts will allow more of the actual costs incurred to be shifted from the successful to the unsuccessful party:

Retroactive Effect. The amendments don’t necessarily apply only to disbursements made on or after October 1; the assessing officer is required to apply the Rules in effect as of the date of the assessment, so they could apply to disbursements actually made before October 1.

No Cap on Recoverable Disbursements for Expert Witness. The most significant change is the deletion from Tariff D, Item 2, of the maximum amount recoverable from the opposite party for an expert witness’s attendance at trial. Currently, this amount is capped at $250 per day; this cap will be deleted, leaving the amount to be what was reasonable and necessary in the circumstances. This opens the door to full indemnity for the costs of an expert witness at trial, and allows the successful party to shift most – if not all – of its actual costs to the unsuccessful party.

Higher Witness Fees. Currently, a party may pay the witness actual meal and accommodation costs and loss of wages where the witness is not entitled to paid leave to testify – but the amount of disbursements recoverable from the opposite party were effectively capped. Under Tariff D, Item 1, the fees payable to witnesses not required to attend under Rule 55.05 will increase and the assessing officer will now have the discretion to adjust them if satisfied it is reasonable to do so, effectively making the new rates minimum amounts:

the daily witness fee increases from $35.00 to $50.00 per day of necessary attendance

the mileage rate increases from 20 cents to 40 cents per kilometre between the specified points depending on where the witness resides relative to the trial location

the overnight allowance for accommodation and meals is raised from $35.00 per night to $75.00 per night where applicable

Evidence of Discount Rate for Future Pecuniary Damages. Under Rule 54.10(2), the current 2.5% per year discount rate to be used to calculate future pecuniary damages will become a default rate, and parties will be permitted to bring evidence to establish a different rate.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.